JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. This criminal appeal preferred by the appellant under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 04.05.2001 passed by Sessions Judge, Rajnandgaon, District Rajnandgaon in Sessions Trial No. 24/2001 whereby the appellant has been convicted for offences punishable under Sections 376(2) (g) and 324/34 IPC and sentenced him to undergo rigorous imprisonment for 10 years under Section 376(2)(g) IPC, rigorous imprisonment for 2 years under Section 324/34 IPC with a direction to run the sentences concurrently.

2. The record would demonstrate that accused Ghanshyam @ Choubisha was also convicted with present appellant Babal @ Gulab, who has never challenged the judgment of conviction and order of sentence passed against him by the trial Court as he has already completed the entire sentence awarded to him.

3. Case of the prosecution, in brief, is that the prosecutrix was residing in her inlaws house at Kumharpara Dongargarh. Mother-in-law of the prosecutrix and her husband had gone out side of the house for some work and only brother-in-law Ghanshyam, father-in-law Ramkanhaiya and the prosecutrix (PW-1) were there in the house. Accused Babal also came there. It is alleged that on 08.10.2000 at about 3.30 O’clock, father-in-law of the prosecutrix (PW-1) asked her to prepare tea. As soon as, the prosecutrix had gone to kitchen for preparing tea, then accused Ghanshyam entered into the room and asked his fried Babla to remain outside of the room and thereafter accused Ghanshyam closed the door inside the room having knife in his hand and had thrown her on the floor and committed forceful sexual intercourse with the prosecutrix (PW-1). After committing the offence, the prosecutrix (PW-1) tried to shout then Ghanshyam threatened her to kill and also assaulted on the breast, abdomen, back and thigh. On hearing the voice of the prosecutrix, her father-in-law opened the door then the prosecutrix come out of the room thereafter she narrated the incident to her husband Naresh (PW-5). Husband of the prosecutrix (PW-5) had taken her to hospital for medical from where an information was sent to police Station Dongargarh. After getting information, FIR (Ex.P-1) was lodged against the appellants. The prosecution after usual investigation has submitted the charge sheet before the Additional Chief Judicial Magistrate Dongargarh, who in turn committed the case to the Court of Sessions Judge, Rajnandgaon which was registered as Sessions Case No. 24 of 2001.

4. Learned Sessions Judge, Rajnandgaon after perusal of the records reached the conclusion that there was sufficient material for framing of charges under Sections 376(2)(g) and 324/34 IPC. Accused denied the charges levelled against him and claimed to be tried.

5. The prosecution in order to prove the guilt of the appellant examined in all 8 witnesses, prosecutrix (PW-1), Dr. A.K. Tamrakar (PW-2), Jagdish (PW-3), Sukhiram (PW-4), Naresh (PW-5), Head Constable Onkar Soni (PW-6), Hinchharam (PW-7), S.L. Borasi (PW-8). The appellant has not examined any witnesses in his support. The prosecution to prove the guilt of the appellant has exhibited the documents FIR (Ex.P-1), Memo dated 08.10.2000( Ex.P-2), MLC of accused (Ex.P-3A), report (Ex.P-3), Examination of weapon dated 18.04.2001 (Ex.P-4A), report (Ex.P-4), MLC of prosecutrix (Ex.P-5A), report (Ex.P-5), examination of undergarment of accused (Ex.P6-A), report (Ex.P-6), examination of cloth of prosecutrix (Ex.P7-A), report (Ex.P-7), MLC of accused (Ex.P-8A), report (Ex.P-8), property seizure (Ex.P-9), property seizure (Ex.P-10), property seizure (Ex.P-11), Crime Details form (Ex.P-12), Map (Ex.P-13), consent for medical by the prosecutrix (Ex.P-14), arrest memo (Ex.P-13).

6. Statement of accused/appellant has been recorded under Section 313 Cr.P.C. in which he has stated that there is illicit relationship between the prosecutrix’s mother-in-law and himsel